Asda Stores Limited v Brierley and Others
Spaceman v ISS Meridian Limited (t/a ISS Facility Service Healthcare)
The first case I would like to highlight is the Court of Appeal’s landmark decision in Asda Stores Limited v Brierley and Others, which considered the issue of comparators in equal pay claims. In our January newsletter, you may recall that we referred to this case which was heard in 2018 but the judgment had not, at that time, been released.
By way of background, this case considers equal pay claims brought by around 7,000 employees, predominantly female, working in retail stores. They sought to compare their pay to higher paid employees working in the distribution depots, who are predominantly male. None of the distribution depots or the retail stores were located on the same site. The regime for determining the employment terms and conditions for the retail employees and the distribution employees were managed under different processes. The terms and conditions of employment for the distribution depots were heavily unionised and therefore subject to collective bargaining, whereas the terms and conditions for retail were not. However, regardless of this, both were answerable to the Executive Board.
Asda argued that the pay regimes were separate and distinct for the retail employees and the distribution employees and, as such, the retail employees could not compare their pay to that of the distribution employees.
The Court of Appeal held that the retail employees could compare themselves to the distribution employees, and that the terms were set by the same employer and the Executive Board exercised budgetary control. The same employer also had the power to introduce equality. It further held that the terms were broadly similar across the relevant sites, whether in the stores or the depots and, regardless of the site on which the employee worked, the common terms remained the same.
The learning point to take away from this case is that physical separation of employees will not absolve liability. Where an employee works exclusively at a different site, this will not in itself act as a barrier to a comparator for the purposes of an equal pay claim.
The second case to highlight this month is Spaceman v ISS Meridian Limited (t/a ISS Facility Service Healthcare). This is an interesting case which considers the protection afforded to employees from dismissal for asserting a statutory right.
Mr Spaceman was employed as a dispatch porter at a hospital. Allegations were made against him of sexual harassment and assault. He was suspended and the matter was investigated. Following the investigation, he was invited to attend a disciplinary hearing. Further information came to light at the hearing, which the disciplinary officer subsequently investigated, before Mr Spaceman was dismissed.
It was alleged by Mr Spaceman that he informed the disciplinary hearing that a colleague had been told by a manager that he would be dismissed anyway, i.e. the decision was predetermined.
Mr Spaceman did not have the qualifying period to bring a claim for unfair dismissal. However, he claimed that the action of informing his employer during the disciplinary hearing that the decision would be predetermined to dismiss him, amounted to asserting a statutory right (i.e. the right not to be unfairly dismissed). He alleged that the reason he was dismissed was due to him raising the allegation at the disciplinary hearing.
Thankfully, the Employment Appeal Tribunal did not agree and concluded that an allegation that there may be a breach of a statutory right in the future is insufficient to afford this protection. There must have been an infringement of the right at the time.
